Citation Nr: 23016845 Decision Date: 03/19/23 Archive Date: 03/19/23 DOCKET NO. 19-03 232A DATE: March 19, 2023 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder disability from July 2015 angioplasty with stent placement is denied. FINDING OF FACT The July 2015 angioplasty stent placement procedure did not result in any additional right shoulder disability. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for a right shoulder disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to November 1977. The Board previously remanded this matter in October 2019 for further development. As discussed further below, the Board finds that there has been substantial compliance with the prior Board remand directives. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for a right shoulder disability The Veteran asserts that he suffers from a right shoulder disability due to a July 2015 angioplasty with stent placement procedure performed at the VA. Section 1151 provides compensation for a qualifying additional disability as if the disability was service connected. A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was either (1) caused by negligence, lack of proper skill, error in judgment or a similar instance of fault on the part of VA in furnishing treatment; or (2) if the additional disability is the result of an event not reasonably foreseeable. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing treatment caused a veteran's additional disability, it must be shown that the treatment caused the Veteran's additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. In determining that additional disability exists, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). Regarding medical or surgical treatment, a veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358 (b)(1), (2). The Board previously observed that a July 2016 VA examiner found that the Veteran's upper extremity pain was due to his end stage arthritis of the right shoulder as opposed to insertion and removal of a stent. The examiner stated that they could not find any evidence that the Veteran's shoulder disability was caused by or became worse as a result of VA treatment. The examiner also found that there was no carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel. The examiner continued that it was not the result of an event not reasonably foreseeable. However, as it was unclear whether the examiner had reviewed all of the relevant VA clinical records since there were no records in the claims file prior to August 2015, the Board remanded this matter to obtain additional VA clinical records and another VA opinion. Importantly, the additional VA clinical records obtained showed that the Veteran was diagnosed with severe arthritis of the right shoulder prior to the July 2015 procedure. Further, the records included consent for the procedure. The surgical report does not show any complications. VA clinical records within the month following the procedure are silent with respect to any right shoulder symptoms. Rather, the Veteran reported bilateral foot numbness and swelling around the entry site from the stent placement in the right wrist. After examining the Veteran and reviewing the claims file, the January 2020 VA examiner opined that it was less likely than not that the Veteran's right shoulder disability was caused by the July 2015 procedure. The examiner rationalized that that a March 2015 x-ray showed advanced arthritis and this condition existed prior to the procedure. The examiner also found that the right shoulder disability was not caused by another procedure in August 2015 because the right shoulder condition existed prior to the procedure. The examiner reiterated that there was no carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel, or an event not reasonably foreseeable because the disability existed prior to the surgery. Likewise, the examiner found that it was less likely than not that the failure on the part of VA to timely diagnose and or properly treat claimed disease of disability allowed it to continue to progress. Again, it was noted that this disability existed prior to the procedure, and it is a chronic condition. Based on the January 2020 VA opinion, the Board finds that the Veteran has not been diagnosed with any additional right shoulder disability as defined in 38 C.F.R. § 3.361. The examiner clearly found that the Veteran's right shoulder symptoms were not due to the July 2015 procedure as the Veteran had advanced arthritis of the right shoulder that existed prior to the procedure and was a chronic condition. The examiner's findings are also supported by the VA clinical records that showed the Veteran had a prior shoulder disability and there was no mention of any shoulder problems within a month of the procedure. The January 2020 VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's lay statements indicating that he has had additional right shoulder problems since surgery. The Board recognizes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, while the Veteran is competent to report his symptoms, he has not demonstrated that he has the medical expertise to diagnose any additional disability related to his July 2015 procedure. Accordingly, the Veteran's contentions have been outweighed by the more probative January 2020 VA opinion. In conclusion, the Board must find that entitlement to compensation pursuant to the provisions of 38 U.S.C. § 1151 for an additional right shoulder disability is not warranted as the probative evidence of record shows no findings of an additional right shoulder disability due to the July 2015 angioplasty with stent placement. Thus, as the evidence persuasively weighs against the Veteran's claim for 38 U.S.C. § 1151 compensation, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.